Posner demonstrates that he has little imagination. Tyranny is not just the knock on the door in the middle of the night; it's the government telling private businesses who they must lend to at what rate, which is where this is heading eventually. I predict a credit card meltdown within ten years or so. Consumers will have taken on more debt than prudent and that they would have without the CFPB. In the meantime, if Capital One plays their cards right, they will be Too Big To Fail by then, and get a huge government bailout.

"Members of Congress, like kindergartners, get recesses. But unlike kindergartners, they get to decide when these recesses occur. For most of its history Congress has met in one session per year, with each session starting in January (or sometimes later in the winter) and ending in December (or sometimes earlier in the fall). The period between the end of one session and the beginning of the next is called the intersession recess. Congress also sometimes adjourns in the middle of a session. These breaks, called intrasession recesses, may be as short as an hour for juice and cookies or as long as weeks while members vacation or campaign. Throughout history, presidents have made appointments during intersession recesses, and since the 1940s they have also frequently made appointments during intrasession recesses longer than three days or so."

His intended audience must be retarded or enjoy being condescended to.

"But it’s hard to imagine the NLRB or the Consumer Financial Protection Bureau as instruments of tyranny."

Actually, no, it's not.

The Ministry of Interior, labor camps and psychiatric wards were for the outliers -- the Solzhenitsyns, Sakaharovs, and unrepentant Baltic nationalists. They just killed one bodily.

For everyone else, the real soul-killers were the low- and mid-level bureaucrats who stamped ration cards, allotted housing permits, scanned internal passports, tutored one's children in Marxism/Leninism during Young Pioneer Sleepaway Camps, assessed one's political reliability when considering one's children for university, chaperoned and reported on one during permitted trips abroad, or harangued one during weekly party get-your-mind-right meetings.

Contrary to some of the comments above, and to the impression one might have after reading this, E. Posner is actually intelligent.

But this is a really awful piece. The entire argument, such as it is, is that when the president and the Senate disagree, the president wins. There's a not to tradition, and also a nod to the fact that this isn't within the tradition, and a mention of the fact that the Senate gets to determine when it is in recess, and then no acknowledgement of the fact that the president disagrees. Worse, there's no explanation for how it is that the Senate came to be in the midst of a new session as a result of a pro forma meeting when Posner would have us think that pro forma meetings have no effect. (This matters to the case--it determines how long the recess appointments, if valid, last.)

"But it’s hard to imagine the NLRB or the Consumer Financial Protection Bureau as instruments of tyranny."

It's trivially easy.

For instance, the NLRB couid effectively destroy any business by ruling against it in bogus labor disputes. Alternatively, the NLRB could destroy any union that is opposed to the administration.

The CFPB has practically unfettered discretion to shut down any bank or other financial institution at will, by declaring that an "orderly liquidation" is required. It could destroy any bank that doesn't support the administration, or force banks to refuse credit to any business.

But this is a really awful piece. The entire argument, such as it is, is that when the president and the Senate disagree, the president wins.

So, the Senate gets to decide when it is in recess, unless the President wants to appoint someone, and then he waits until they aren't there for a short bit, and declares them in recess, so that he can avoid having his nominees go through the confirmation process. And, Posner fails to address the points made by the court, that the Administration's argument, carried to the logical extreme, would allow the President to make "recess" appointments whenever the Senate isn't there for any period of time, including overnight, or even a 5 minute bathroom break, and that this is one of the Constitutional checks on the Executive, and their interpretation is an attempt to sidestep this check.

Keep in mind what was happening. This isn't a case of the Senate being out of session for 4 or 5 months at a time, so that the Senators could go home for awhile by coach or horesback, but rather, an attempt to circumvent the Advise and Consent power of the Senate in order to put people into positions who would fail to get confirmed in the normal course of events.

And, yes, both sides have done it. Was just watching Red Eye, and John Bolton was on there, with is bushy now white mustache, and was reminded by this post that he was U.N. Ambassador by this same strategy by the Bush (43) Administration. He was much too controversial, and was not going to get confirmed. The Senate goes out of town, and voila.

The court pointed out that the purpose of the recess appointment power was to allow the government to function during the long intersession recess, which in early times of the Republic could last many months. It was not to allow the President to bypass the Senate whenever they were not all present in the Capital, for periods as short as three days, or maybe even 5 minutes. The NLRB, etc., can survive without members for these short periods of time just fine.

And, yes, after giving perfunctory mention of the Senate supposedly having the power to decide when it is in session, and when it is in recess, Posner totally ignores this point, and implicitly says that what the President says in this regard is what matters, and that it is he, not they, whose determination of when they are in session counts.

The President should be allowed to make recess appointments during anything he deems is a recess, be that 5 minutes, overnight, 2 days, etc....

Those appointments are then valid until the end of the next session.

Using this logic for when a session is being held, if a recess for lunch ends the morning session allowing for a recess appointment, then the appointment made during that lunch hour will only be valid until the end of the next session, that being the evening session.

If his argument is that the President gets to define what is or isn't 'in session', then those definitional terms must also be applied to how long his appointment lasts. Otherwise he is attempting to state that there are two different meanings of session, one which applies only when he wants to appoint someone, but then the that term lasts as long as the constitution states.

This is par for the course, I know. It is just fun to find the logical problems they try to paper over when trying to justify stepping outside the constitution.